Romney’s Squawking About Birds Is Much Ado About Nothing

Sunset over the J. Clark Salyer National Wildlife Refuge in North Dakota. Photo: Gary Eslinger/USFWS/Flickr

During the second presidential debate Tuesday, Mitt Romney described a criminal case filed against oil companies accused of killing just a few dozen birds — an example, he implied, of government regulation run amok and slowing down energy development in the United States.

In fact, the misdemeanor prosecution was a small, relatively routine affair, likely involving a few thousand dollars in fines for multi-billion-dollar companies that hadn’t taken simple, inexpensive precautions to avoid killing birds. One could argue that the fines were undeserved, but the punishment was negligible.

“It’s been vastly overstated,” said Mike McEnroe, a former Fish and Wildlife Service employee and now a legislative liaison for North Dakota’s chapter of the Wildlife Society. “The fines were between a couple hundred and a thousand dollars. It’s not like it was stopping the industry.”

Romney referenced the lawsuit, which was eventually dismissed by a judge, during a heated exchange over domestic energy development. In response to President Obama’s statement that U.S. gas production was at an all-time high, Romney rejoined that much of it came from the Bakken formation of North Dakota.

“What was his participation there? The administration brought a criminal action against the people drilling up there for oil, this massive new resource we have,” Romney said. “And what was the cost? Twenty or 25 birds were killed, and they brought out a migratory bird act to go after them on a criminal basis.”

The Bakken formation is a layer of oil-rich shale underlying part of what’s called the Prairie Pothole region, which spans the upper Great Plains and contains thousands of shallow wetlands carved by glacial retreat at the end of the last Ice Age. The wetlands are home to some of the richest bird life in North America, while the shale contains some of its richest oil deposits.

'We're tired of seeing conservation politicized, and this was a great example of it.'

The gas was long inaccessible, but advances in extraction technology now allow companies to drill horizontally through miles of rock, then flush it with high-pressure fluids that force oil out, a process known as hydraulic fracturing. The resulting waste is gathered in pits that fill with water during spring snow melts and are mistaken for ponds by birds, which often die after landing in them.

For the last several decades, said McEnroe, Fish and Wildlife Service inspectors have routinely checked waste pits in spring, making sure they’re covered by nets to prevent birds from landing. If inspectors found dead birds, they charged the companies with misdemeanor violations of the Migratory Bird Treaty Act of 1918. In practice it amounted to fines of a few hundred dollars per dead bird.

In May of 2011, FWS charged seven companies with violations of the Act. One of the charges was dropped. Three of the companies agreed to pay their fines. The others — Brigham Oil and Gas, L.P., Newfield Production Company and Continental Resources, Inc. — fought their case in court. This is the lawsuit to which Romney referred during the debate.

According to documents from the case, Brigham Oil and Gas was responsible for two dead mallard ducks; Newfield, for two mallards, one northern pintail, and one red-necked duck; and Continental Resources for a Say’s phoebe. What the companies would have paid is unspecified, but can be inferred from their previous experiences with the Migratory Bird Act.

In 2008, Brigham Oil and Gas paid $375 for killing a blue-winged teal. In 2007, Continental Resources paid $750 for killing a mourning dove in Montana. In both cases, FWS inspectors had left a note recommending that the companies put nets over the ponds.

“The companies that were prosecuted, that were ticketed and told to go to court, the FWS has worked with them for many years. They’ve told them the pits needed to be covered. These were repeat violations,” said McEnroe. “The companies think it’s cheaper to pay a $1,000 fine than to put a net on.”

The lawsuit was dismissed in January, after a federal district court judge Daniel Hovland ruled that killing the birds didn’t violate the Migratory Bird Act Treaty because it wasn’t intentional. The companies couldn’t be held responsible any more than an automobile driver could be guilty for running a bird over.

Court document image of a Continental Resources waste pit. Image: U.S. District Court of North Dakota

“The remedy for the death of migratory birds found in or near reserve pits in the oil fields of North Dakota is probably best left in the hands of the North Dakota Industrial Commission,” wrote Hovland.

McEnroe disagrees with the decision, saying there’s a difference between an action that’s unintentional and unavoidable and one that can be avoided. The larger issue, however, is the pace of gas development in North Dakota. Four years ago, the state had about 4,000 oil wells. Now 200 are being drilled every month, and within a few decades there will be 70,000.

“We have not seen oil development of this magnitude in prairie pothole country,” said McEnroe. “We’ve seen it in Texas, Oklahoma, Wyoming, parts of Montana, but they’ve never been wetlands habitat. We have 20 to 150 small ponds per square mile. They’re trying to overlay 60,000 to 70,000 oil wells on the same habitat.”

The environmental consequences don’t end with waste pits. Each well requires millions of gallons of water, which is pumped from local aquifers and even straight from wetlands. New access roads criss-cross the landscape.

“Nobody from the environmental community is saying no to oil development. They’re saying, do it carefully. Do more of a review before you put your well in. Put it in the least obtrusive place. Think a little bit before you do it,” McEnroe said. “Do it a little slower, a little more carefully. It’s not, ‘Don’t do it.’ Just do this thing right.”

“It’s not a big number,” said Mark Brownstein, an energy specialist at the Environmental Defense Fund. He noted that some of the extra costs would be offset by savings in water and oil waste. “Doing the right thing by local environment and public health, although there’s a cost associated, there’s economic benefits, too,” he said.

Audubon Society CEO David Yarnold lamented the lawsuit’s portrayal in the presidential debate. “It’s a great example of how conservation is used as a wedge issue, when in fact conservation doesn’t have a party,” said Yarnold.

The Audubon Society recently partnered with Republican organization ConservAmerica on the American Eagle Compact, a bipartisan environmental stewardship initiative. The website mentions two polls conducted this year that found overwhelming support in western states for both conservation and energy development.

“The demagoguery around conservation, the extremes on the left and right, have made it impossible for Republicans to talk about conservation, and Democrats are afraid because they don’t want to be labeled treehuggers,” Yarnold said. “We’re tired of seeing conservation politicized, and this was a great example of it.”

Note: Neither Brigham Oil and Gas or Continental Resources returned requests for comment.